Child custody and access in Malta after separation
When parents in Malta separate, divorce or end a relationship, the Civil Court (Family Section) decides who will have care and custody of the children and how the other parent will have access. The test is always the same: the welfare of the child is the paramount consideration (articles 47 and 56 of the Civil Code, Cap. 16). Custody concerns where the child lives and day-to-day care; parental authority, which covers important decisions such as schooling, health and travel, normally stays with both parents and is exercised by common accord (article 131).
The same rules apply to married and unmarried parents: article 37(9) extends the Family Section procedure to custody and access cases even when the parents were never married, and regulation 10 of S.L. 12.20 sends every such dispute to mediation first. The court can hear the child, appoint a children's advocate, restrict or refuse access where there is a risk of harm, and change its orders whenever the child's interests require.
This guide explains how to agree a parenting arrangement, how to apply when you cannot agree, what the court looks at, and how to deal with access that is refused, a parent who wants to move abroad, and situations involving domestic violence.
Key facts
Deadline
After mediation at the Family Section fails, the court authorises proceedings and the case must be filed within two months (regulation 11(1) of S.L. 12.20); the pre-trial stage should not exceed one year except for grave reasons (regulation 11(4)). Urgent directions on custody and access can be given at any stage by provisional order (regulation 10(6)). Applications for the return of a wrongfully removed child go to the courts under the Child Abduction and Custody Act (Cap. 410).
What to do
Understand the difference between custody, access and parental authority. Parental authority belongs to both parents and is exercised by their common accord; on matters of particular importance either parent may ask the court for directions if they disagree (article 131 of Cap. 16). Care and custody decides with whom the child lives. Access is the time the other parent spends with the child, at times, places and in a manner fixed by the court (article 57(2)).
Whoever has custody, both parents keep the right to watch over the child's maintenance and education and must contribute to it (article 57(1)). The court can, where circumstances require, deprive one or both parents of parental authority wholly or in part (article 56(5)), but that is exceptional.
Try to agree a parenting plan. The best outcome for most children is a written plan agreed by both parents. Cover where the child lives on school days, weekends and holidays, how handovers take place, how Christmas, Easter, birthdays and summer are shared, how the parents communicate, who decides on extracurricular activities, and travel abroad.
To make it binding, include it in a contract of separation authorised by the court (articles 59 and 60), in a divorce agreement, or have it recorded before the Family Section mediator and decreed by the court (regulation 10(4) of S.L. 12.20). Any agreement on custody can later be annulled by the court, on the demand of either parent or a relative, where the interests of the children require (article 61).
File the letter that starts mediation. If you cannot agree, file a letter in the registry of the Civil Court (Family Section), or the Gozo Family Section, stating your claim and the names and addresses of both parents (regulation 10(1)(a) of S.L. 12.20). The same applies to a request to change an existing arrangement (regulation 10(1)(c)–(d)).
Both parents are summoned before a mediator, who may hear them separately or together with their advocates, and may hear the children (regulation 4(6), applied by regulation 10(3)). If you attach evidence of domestic violence, the court first decides whether mediation is in the parties' best interest (regulation 4(3)). Failure to attend is reported to the court and taken into account (regulation 12).
Ask for provisional orders if the situation is urgent. You do not have to wait for the end of the case. During mediation any party may ask the court for a provisional order to safeguard his or her rights (regulation 10(6)), and under article 37 of the Civil Code, which applies also to unmarried parents (article 37(9)), the court can decide urgently by decree.
In a separation or custody case where evidence of domestic violence has been produced, the court may issue a protection order under article 412C of the Criminal Code, on application or of its own motion, to protect the parties or in the best interests of the children (article 39 of Cap. 16). It may also limit or deny access if access would put the children or the other parent at risk (article 47).
Prepare the evidence the court looks at. The court decides on the welfare of the child. Useful evidence includes who has been the main carer until now, the child's routine and school, the parents' working hours and housing, the child's relationship with siblings and grandparents, any health or special needs, and each parent's willingness to support the child's relationship with the other.
Keep a factual diary of handovers, missed visits and communication, and save messages. Avoid involving the child in the dispute. The court may appoint a children's advocate to represent the child's interests (regulation 11(2) of S.L. 12.20) and experts, such as a child psychologist or social worker, during the pre-trial stage (regulation 11(3)).
Let the child be heard, appropriately. The Family Section may hear the minor children where it considers this to be in their best interest, and in divorce cases may appoint a children's advocate on its own initiative or on request (article 66I(2) of Cap. 16). On disagreements over important decisions, the court must hear the child if he or she has reached fourteen (article 131(4)).
The children's advocate gives the child legal assistance, submits the child's views to the court, and explains the possible consequences if the court follows the child's wishes (regulation 3(6A) of S.L. 12.20). A support person may also be appointed to guide the child through the proceedings. The child's views are weighed; they do not decide the case on their own.
Understand the decision and how it can change. On separation or in a custody case the court directs to which parent custody is entrusted, the paramount consideration being the welfare of the children (article 56(1)). Where strictly necessary it may place the children with persons in loco parentis, third parties or in alternative care (article 56(2)). In practice the court can also order shared care and custody where both parents are suitable; ask for it expressly if that is what you want.
Orders on children are never final: the court may at any time revoke or vary its directions where the children's interests require (article 56(4)). For grave reasons, including evidence of domestic violence, it may declare a parent unfit to have custody, so that this parent cannot assume custody on the death of the other without court authorisation (article 56A).
Deal with refused or abandoned access. If the parent with custody refuses access ordered by the court, keep records and apply to the Family Section for enforcement or a variation of the arrangements. If the parent with access does not use it without reasonable cause, the court may withdraw the right of access (article 57(2)).
Where access is harmful, the court may forbid it entirely if it may be detrimental to the welfare of the minor or of one of the parents (article 57(3)), and the right to watch over the child's education can be suspended where its exercise would put the child or the other parent at risk of harm (article 57(1)).
Get court approval before moving abroad with the child. Relocating a child outside Malta is treated as a matter of particular importance under article 131, so it needs the other parent's agreement or the court's authorisation. Taking or keeping a child abroad without it may be a wrongful removal or retention under the 1980 Hague Convention, which has force of law in Malta through the Child Abduction and Custody Act (Cap. 410).
If your child has been taken from Malta, or brought to Malta, without your consent, contact the central authority, which is the Chief Executive Officer of the Social Care Standards Authority (article 5 of Cap. 410). Applications for return are heard by the First Hall of the Civil Court, which may give interim directions to protect the child (articles 6 and 7). Act quickly: delay weakens a return application.
What to watch out for
- Moving out and leaving the children behind for a long time without a court order. The parent who has been the main carer during the case often keeps that role.
- Speaking badly of the other parent to the child or using the child as a messenger. The children's advocate and experts will report this to the court.
- Withholding access because maintenance is unpaid. Access and maintenance are separate; refusing access can count against you.
- Not exercising access. Under article 57(2) the court may withdraw access that is not used without reasonable cause.
- Travelling abroad with the child without written consent or court authorisation, which may lead to return proceedings under Cap. 410.
- Relying on an informal arrangement. Without a decree there is nothing to enforce when the other parent changes the routine.
- Missing the two-month window after mediation (regulation 11(1) of S.L. 12.20) and having to start again.
Legal basis
Frequently asked questions
Who gets custody of the children in Malta?
There is no rule in favour of the mother or the father. The court entrusts custody to the parent who best serves the welfare of the children, which is the paramount consideration under article 56(1) of the Civil Code. It looks at the children's needs, routine, relationships and each parent's ability and willingness to support the other's role.
Is joint custody possible in Malta?
Yes. Parental authority is normally exercised by both parents jointly (article 131), and the Family Section can arrange care and custody so that both parents share it where this is in the child's interest. Ask for shared care expressly in the letter or sworn application and show that you and the other parent can cooperate.
At what age can a child choose which parent to live with in Malta?
No age gives the child the final say. The court may hear the children where it is in their best interest, and must hear a child of fourteen or older when parents disagree on an important matter (article 131(4)). A children's advocate can present the child's views (regulation 3(6A) of S.L. 12.20), which the court weighs with the child's welfare.
Do unmarried fathers have custody and access rights in Malta?
Yes. Rights and duties towards children arise from parenthood. Article 37(9) of the Civil Code applies the Family Section procedure to maintenance, access and custody even when the parents are not married, and regulation 10 of S.L. 12.20 covers disputes between parties whether married or otherwise.
Can my ex stop me seeing my child?
Not without a court order. Access is fixed by the court (article 57(2)), and only the court can forbid it where it would harm the child or a parent (article 57(3)). If access ordered by the court is refused, apply to the Family Section with your records of the refusals; the court can enforce or vary the arrangement.
Can access be refused because of domestic violence?
Yes. Where there is evidence of domestic violence, the court may limit or deny access if it would put the children or the other parent at risk (article 47 of Cap. 16), can issue a protection order (article 39), and may declare the violent parent unfit for custody (article 56A). Supervised access is one way the court limits risk.
Can I take my child abroad after separation in Malta?
A move abroad is treated as a matter of particular importance, so it needs the other parent's agreement or the court's authorisation (article 131 of Cap. 16). Removing or retaining a child abroad without it can be a wrongful removal under the Hague Convention, applied in Malta by the Child Abduction and Custody Act (Cap. 410), and the child may be ordered back.
What should I do if my child has been abducted abroad from Malta?
Contact the central authority under the Hague Convention, which in Malta is the Chief Executive Officer of the Social Care Standards Authority (article 5 of Cap. 410), and an advocate. The authority works with its counterpart in the other country. Requests for return should be made as soon as possible; delay can weaken them.
Can a custody order be changed later?
Yes. The court may at any time revoke or vary its directions about the children where their interests require (article 56(4) of the Civil Code), and agreements on custody can be annulled under article 61. A request for variation starts with a letter and mediation at the Family Section (regulation 10(1)(c)–(d) of S.L. 12.20).
Is mediation compulsory in custody cases in Malta?
Yes. Under regulation 10 of S.L. 12.20 a party wishing to bring a dispute on custody, maintenance or access first files a letter in the Family Section registry, and the parties are summoned before a mediator. If mediation fails, the court authorises proceedings within two months. Where domestic violence is shown, the court decides first whether mediation is appropriate.
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